In 1986, Dr. James Cohn and his wife, Lisa Bahn Cohn, retained Kaplan to represent their minor child, Matthew Cohn, in connection with a medical malpractice action arising from injuries sustained during Matthew's birth. Although agreeing to the representation, Kaplan informed the Cohns that additional counsel possessing some experience in medical malpractice suits would be required. Accordingly, Kaplan referred the Cohns to Geoffrey Gifford, an experienced malpractice attorney associated with the law firm then known as Asher, Pavalon, Gittler & Greenfield, Ltd. ("Asher & Pavalon").
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Kaplan introduced the Cohns to Gifford in a meeting at Gifford's office in approximately October of 1986. At this meeting, pursuant to Kaplan's advice, the Cohns retained Gifford as additional counsel. Gifford agreed on behalf of his firm to represent Matthew Cohn on a contingent fee basis. According to Kaplan, all parties to the meeting understood that Kaplan would continue as counsel of record, contributing to the litigation as called upon by Gifford, who agreed to assume principal responsibility over the action. Further, Kaplan claims that Gifford expressly informed the Cohns that Kaplan would receive 1/3 of the fee paid to Asher & Pavalon pursuant to its fee agreement with the Cohns. The Cohns purportedly understood and consented to the fee-sharing agreement between Kaplan and Gifford, on behalf of his firm. Pavalon & Gifford denies the existence of such a fee-sharing agreement and, hence, denies that the Cohns were informed of, or consented to, the agreement as detailed by Kaplan.

The terms of the contingency fee arrangement between Asher & Pavalon and the Cohns are embodied in a written agreement prepared by Gifford, and signed by the Cohns on February 13, 1987. This agreement does not contain reference to, or disclosure of, any division of attorneys' fees or any economic benefit to be received by Kaplan. Indeed, at no time did the Cohns sign a writing disclosing the purported fee-sharing agreement between Asher & Pavalon and Kaplan. Furthermore, in all prior instances in which Kaplan referred cases to Asher & Pavalon and there was an agreement to share any attorneys' fees recovered, written retainer agreements disclosing the division of fees were signed by the clients.

Crucial to the determination of whether Kaplan may enforce the alleged agreement is the binding effect of the 1980 Code of Professional Responsibility on the Illinois courts. We begin by noting that the Seventh Circuit, interpreting Illinois law, has held that the Code is not binding on courts and, as such, not every violation of every rule of professional responsibility can be assumed to be the kind of grave, injurious and nontechnical violation of a strongly established public policy that justifies the voiding of a contract. Cross v. American Country Ins. Co., 875 F.2d 625, 628 (7th Cir. 1989); see also Maksym v. Loesch, 937 F.2d 1237, 1244 (7th Cir. 1991) (citing Cross). The holding in Cross seems to dictate that this court deny Pavalon & Gifford's motion for summary judgment, as violation of Rule 2-107(a) is no less a "minor technical deficiency" than the violation of Rule 2-106(c)(2) in Cross.3 Nonetheless, Pavalon & Gifford, relying on a recent Illinois Supreme Court decision in In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840, 148 Ill. Dec. 243 (1990), has advanced a compelling argument that either (1) Illinois law has changed since the decision in Cross, or (2) it has been clarified in such a manner as to contradict Cross. Under either circumstance, Cross is rendered inapplicable to the present case.

The canons of ethics contained in the Code constitute a safe guide for professional conduct, and an attorney may be disciplined for not observing them. ( In re Taylor (1977), 66 Ill. 2d 567, 6 Ill. Dec. 898, 363 N.E.2d 845.) In determining the appropriate discipline, we bear in mind that, although fairness requires a reasonable degree of consistency and predictability, each disciplinary matter is unique and must be decided on its own facts. In re Hopper (1981), 85 Ill. 2d 318, 53 Ill. Dec. 231, 423 N.E.2d 900.

Yamaguchi, 118 Ill. 2d at 427-28, 515 N.E.2d at 1239. However, Yamaguchi was not without ambiguity. Indeed, in both Taylor and Hopper, decisions relied on in Yamaguchi, the Illinois Supreme Court confronted conduct governed by standards predating 1980, i.e., prior to the Illinois Supreme Court's formal adoption of the Code. As such, Yamaguchi appeared to treat the 1980 Code in the same regard as previous canons of ethics and model codes which were not adopted as official court rules.

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